U.S. Court of Appeals for the 4^th Circuit

Constitutional

Preliminary injunction

BOTTOM LINE: Where parents sought an injunction requiring a Maryland school district to let them opt out their elementary school children from requirements to read books with LGBTQ characters, a divided panel affirmed the denial of an injunction. The parents failed to show how the book policy coerced religious exercise.

CASE: Mahmoud v. McKnight, Case No. 23-1890 (filed May 15, 2024) (Judges AGEE, Benjamin) (Judge Quattlebaum dissents).

FACTS: Parents whose children attend Montgomery County Public Schools in Maryland contend that the Montgomery County Board of Education’s refusal to provide notice and an opportunity to opt out from their children’s exposure to certain books and related discussions violates federal and state law. The parents moved for a preliminary injunction to require the board to provide such notice and an opt-out option. After the district court denied their motion, the parents filed this interlocutory appeal.

LAW: To show a cognizable burden, the parents must show that the absence of an opt-out opportunity coerces them or their children to believe or act contrary to their religious views. As an initial matter, there’s no evidence at present that the board’s decision not to permit opt-outs compels the parents or their children to change their religious beliefs or conduct, either at school or elsewhere.

The parents do not really take issue with the foregoing conclusion; instead, they argue that the board’s decision nonetheless coerces religious exercise by compelling them to expose their children to views that are at odds with their religious faith. Thus, it’s the effect of the board’s failure to grant an opt-out opportunity—that children must be present when teachers use the storybooks in their classrooms or have conversations related to their themes—that the parents oppose.

But Supreme Court precedent requires some sort of direct or indirect pressure to abandon religious beliefs or affirmatively act contrary to those beliefs. And simply hearing about other views does not necessarily exert pressure to believe or act differently than one’s religious faith requires. In the absence of that coercive effect, a government action does not burden religious exercise.

To contend otherwise the parents rely extensively on Wisconsin v. Yoder, 406 U.S. 205 (1972), asserting that their religious rights have been burdened for the same reasons the Supreme Court identified a free exercise violation in that case: their children are being compelled to attend classroom instruction that violates their religious views. In Yoder, however, the Supreme Court applied a narrower principle to a singular set of facts. That narrower principle is whether the challenged government action “affirmatively compel[led] them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Here, the existing record does not show that mere exposure to the storybooks is “affirmatively compel[ling]” the parents or their children “to perform acts undeniably at odds with” their religious views.

In response, the parents point to their children’s young ages and impressionability in contending that mere exposure necessarily amounts to coercion. At present, however, no evidence in the record connects the requisite dots between the children’s ages or mental capacity and their unknown exposure to the storybooks to conclude that the parents have already shown that a cognizable burden exists. In like manner, the parents’ remaining arguments related to coercion in the classroom all suffer from a lack of proof in the record.

To the extent the parents rely on cases recognizing the existence of a burden based on the denial of access to public benefits as the basis for showing a cognizable burden, their argument fails. Finally, insomuch as the parents have not satisfied their burden of showing a likelihood of success as to their free exercise claims, they could not show that their due process claim sets out a hybrid-rights due process claim that would be subject to strict scrutiny. Accordingly, the district court did not abuse its discretion in denying a preliminary injunction as to the parents’ due process claim.

Affirmed.

DISSENT: The parents have shown the board’s decision to deny religious opt-outs burdened these parents’ right to exercise their religion and direct the religious upbringing of their children by putting them to the choice of either compromising their religious beliefs or foregoing a public education for their children. I also find that the board’s actions, at least under this record, were neither neutral nor generally applicable.

Finally, I find the parents have established the other requirements for a preliminary injunction. So, I would reverse the district court and enjoin the board from denying religious opt-outs for instruction to K-5 children involving the texts.